Lincoln County (County) and Lincoln County Courthouse Employees Local 332-A,
AFSCME, AFL-CIO (Union) are parties to a collective bargaining agreement dated January
1, 2008 through December 31, 2009 (Contract). The Contract provides for final and binding
arbitration of grievances arising under the Contract. On january 25, 2010, the Union filed a
Request to Initiate Grievance Arbitration with the Wisconsin Employment Relations
Commission (Commission) regarding discipline issued to the Grievant and asked the
Commission to appoint a comissioner or a member of the Commission's staff to serve as sole
arbitrator over the grievance. The undersigned was appointed. Hearing was held on the
grievance on March 24, 2010 in Merrill, Wisconsin. A transcrip[t of the hearing was
prepared and was received by the arbitrator on April 16, 2010. The parties then subnitted
post-hearing written arguments in support of their positions, the last of which was received
on July 13, 2010, closing the record in the matter.

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Now, having considered the record as a whole, the undersigned makes and issues
the following award.

ISSUE

At the hearing, the Parties stipulated to the following issue to be decided by the
arbitrator:

Did the employer violate the Contract by suspending the Grievant and, if so,
what will be the appropriate remedy?

RELEVANT CONTRACT
PROVISIONS

ARTICLE 2 ­ MANAGEMENT RIGHTS

2.01 The County possesses the sole right to operate County
Government and all management rights repose in it, subject only to the
provisions of this Agreement and applicable law. The rights include, but are
not limited to the following:

A. To direct all operations of the County;

B. To establish reasonable work rules;

C. To hire, train, promote, transfer, assign and retain
employees;

D. To suspend, demote, discharge, and take other
disciplinary action
against employees for just cause;

E. To lay off employees from their duties because of lack of
work or
any other legitimate cause;

F. To maintain efficiency of department operations entrusted
to it;

G. To take whatever actions as necessary to comply with
state or
federal law;

H. To introduce new or improved methods or facilities;

I. To change existing methods or facilities;

J. To manage and direct the working force, to make
assignments of
jobs, to determine the size and composition of the work force, and
to determine the work to be performed by employees;

B.

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K. To utilize temporary, part-time or seasonal employees
when
deemed necessary; provided such employees shall not be used for
the purpose of eliminating existing positions;

L. To determine the methods, means and personnel by
which
operations are to be conducted.

Any unreasonable exercise or application of the above-mentioned
management rights which are mandatorily bargainable shall be appealable
through the grievance and arbitration procedure; however, the pendency of
any grievance or arbitration shall not restrict the right of the County to
continue to exercise these management rights until the issue is resolved.

ARTICLE 7 ­ DISCIPLINE

7.01 The parties recognize the authority of the Employer to initiate
disciplinary action against employees for just cause.

7.02 Except as provided in Article 6.02 [discharge of probationary
employees], employees shall be entitled to appeal any disciplinary action
taken through the grievance and arbitration procedure.

7.03 If any disciplinary action is taken against an employee, both the
employee and the Union will receive copies of this disciplinary action before
the end of the next working day.

LINCOLN COUNTY WORK RULES

. . .

The work rules are listed below. Failure to obey any of the rules
listed shall be sufficient grounds for disciplinary action, ranging from verbal
reprimand to immediate dismissal, depending on the seriousness of the
offense and/or the number of infractions.

Employees are prohibited from committing any of the following:

I. WORK PERFORMANCE

. . .

2. Failure to perform duties

. . .

10. Sleeping on the job

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BACKGROUND

Grievant is employed by the Lincoln County Sheriff's Department (Department) as
a correctional officer assigned to the County's jail facility. At the time of the incidents that
are the basis of this grievance, October 2nd and 3rd of 2009, he had worked in the
Department for more than five years.

The Lincoln County Jail is a new facility having opened in April 2009, less than one
year before the incidents at issue in the matter occurred. In October 2009, there were three
8-hour shifts worked by correctional officers, known as first, second, and third shifts. The
Grievant normally worked the second shift, which ran from 3:00 PM to 11:00 PM. There
is more activity on the first and second shifts than on third shift. On the first and second
shift, meals are served, medications are dispensed, visitors are received, and inmates are
transported to doctor and court appointments. For much of the third shift, the inmates are
asleep and there is less activity for the officers to observe and coordinate.

When working a shift, correctional officers are assigned to various positions within
the jail. One of the positions is located in the "pod," an elevated, glassed-walled room in the
center of the jail.(1) Another position
is the "roaming" officer that physically walks around the
facility and on the third shift, among other tasks, performs cell checks. On the third shift,
there are at least two roaming officers and one pod officer on duty. The third shift pod
officer normally logs in the mail for the day and generally observes activity in the facility,
but otherwise has few duties to perform. Because of the lack of activity on third shift,
officers assigned to the pod sometimes listen to radios and watch movies.

The pod serves as the control center for the jail's security system. When sitting in
the pod, officers are situated approximately three feet above the surrounding jail and are able
to directly observe much of the activity that occurs in the cell areas, as well as view video
feeds from surveillance cameras located throughout the jail on a video monitor. The video
feed from the cameras appear on the monitor in 3 inch by 3 inch squares. The video
monitor,
computers, and other equipment are situated on a long desk. When sitting at the desk in the
pod, the officer's back is to the entrance vestibule where there are two doors that lead to the
cell areas. The doors are commonly referred to as VA and VN. To the pod officer's right
when seated at the desk is a pass through door where officers outside the pod can pass
through items to the officer inside the pod. From outside the pod, an officer can look up
through the pass through window to see the side of the pod nearest the window, including
the desk.

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On October 2, 2009, the Grievant reported for work for his usual second shift
­
from
3:00 PM through 11:00 PM. He was informed that one of the third shift employees
requested
that night's shift off and that there was an overtime opportunity on the third shift. The
Grievant then worked the first half of the third shift in the pod, starting from 11:00 PM on
October 2, 2009 through 3:00 AM on October 3, 2009.(2) As will be discussed in more detail
below, while working this overtime shift, the County alleges that the Grievant fell asleep and
failed to perform work duties. The County issued a six-day suspension as discipline.

DISCUSSION

The disciplinary report that led to the decision to impose a six-day suspension on the
Grievant contains the following:

On October 3, 2009, Correctional Officer Jason Meister was observed
sleeping at his post and failed to log pertinent information in the jail log
while working as a correctional Officer in Pod Control at Lincoln County
Jail. This is a violation of Work Rules Section I Number 2. Failure to
perform duties, and Number 10. Sleeping on the Job. This is also a violation
of Lincoln County Core Values Integrity and professionalism.

In this case, the County disciplined the Grievant for sleeping on the job during the
overtime assignment on October 2nd and October 3rd of 2009 and failing to log cell checks.
Although not specifically mentioned in the disciplinary report, it was also alleged that he
twice delayed opening the doors for roaming officers who were performing cell checks,
causing one of them to feel unsafe.

The Contract contains a just cause standard for disciplinary action. Therefore, the
issue in this matter boils down to whether there was just cause for the County to suspend the
Grievant for six days without pay. The first step of the just cause analysis is to determine
whether the Grievant actually engaged in the conduct that is alleged by the County to have
violated a work rule. The Union argues that the County must establish this conduct by
presenting "clear and convincing" evidence because the accusations of sleeping on the job
are "stigmatizing." The County argues that the appropriate standard is one of
"preponderance of the evidence" because the allegations of violations of work rules do not
allege criminal or immoral conduct and are not

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particularly stigmatizing. I do not find it necessary to decide this issue as my
conclusion on
the merits of the grievance would remain the same regardless of which standard is applied.

To establish that the Grievant was asleep on the job, the County offered the
eyewitness testimony of a correctional officer who regularly works the third shift and who
physically viewed the Grievant on the night in question. The eyewitness testified that the
normal practice on the third shift is for the pod officer to automatically open the VA and VN
doors for the roaming officers to perform hourly cell checks. On the night in question, there
were two occasions where the doors were not opened immediately and the roaming officers
had to make a radio call into the pod for the doors to be opened. On the second occasion, at
approximately 2:24 AM, the eyewitness and another officer were preparing to perform one
of the hourly cell checks. After walking to the VA and VN doors and waiting for a few
seconds for the Grievant to open the doors from the pod, the eyewitness walked to the pass
through door and looked into the pod. The eyewitness testified that he saw the Grievant with
his legs up on the desk, leaned back in a chair with his eyes closed. The eyewitness reported
this observation to a supervisor the following day, telling the supervisor that he had seen the
Grievant sleeping. This report led to the investigation that ultimately resulted in the
imposition of the six-day suspension.

I find the eyewitness' testimony that the Grievant was sleeping unconvincing for
several reasons. First, there is evidence that the area around the pod was dark in the early
morning hours when the incidents occurred. The only light came from a dim nightlight and
the glow from the monitors on the pod desk. Based on this evidence, I find that the visual
observation made by the eyewitness would be obscured by the darkness of the environment.
Further, the Grievant credibly testified that the position he was sitting in at the desk on the
evening in question would have resulted in him facing away from the pass through door.
The
computer monitors were arranged at the end of the desk nearest the pass through door. If at
least one of his legs were resting on the pod desk, a fact which is undisputed, then he would
have been sitting in a position where the eyewitness could have seen, at most, the Grievant's
profile. Finally, the eyewitness admitted that he was not certain that the Grievant was
actually sleeping. Although he reported to his supervisor that the Grievant was sleeping, in
his written statement, he reported that the Grievant "appeared" to be sleeping or was
"unaware" of the roaming officers' presence at the VA and VN doors of the pass through
door. From this, it seems that the eyewitness was not certain that the Grievant was actually
sleeping.

The County also focuses on the delay in the Grievant opening the doors for the two
roaming officers when they were conducting their hourly cell checks as further evidence that
he was sleeping. There was testimony that on third shift, on average, the VA and VN doors
are opened from the pod within 10 seconds of the officers arriving at

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the doors. The County produced video surveillance recording to establish the delay in
the
doors opening. The video demonstrates that during the 1:04 AM cell check, their was a
lapse
of approximately 30 seconds between the time the roaming officers approached the VA and
VN doors and when the doors were opened. At the 2:24 AM cell check, the video shows a
lapse of approximately 40 seconds.

After carefully viewing the video recording of the security tape for both the
1:04 AM
and 2:24 AM incidents, I do not find the delay to be convincing evidence that the Grievant
was sleeping. The County focuses on the total time lapse between when the roaming officers
arrive at the VA and VN doors and when the Grievant opened the doors. As to whether the
Grievant was sleeping, I think it is more relevant to evaluate the time from when the radio
call was made (and presumably, from the County's perspective, woke up the Grievant) to
when the door was opened. Unfortunately, due to the darkness of the video, it is difficult to
determine the exact time when the radio call was made. However, the testimony of the
roaming officers as well as my observations of the video lead me to conclude that the time
lapse between the radio call being made and the door being opened was no more than 15
seconds for the 1:04 AM incident and no more than 5 seconds for the 2:24 AM incident.

During the 2:24 AM incident, the roaming officers approached the VA and VN
doors,
waited approximately four seconds, then the eyewitness walked to the pod to make the
observation described above for approximately 29 seconds before returning to the doors.
The
doors were opened almost instantly after the eyewitness returned to them. Based on the
eyewitness' testimony that he radioed for the doors after returning to the VA and VN doors,
I conclude that the Grievant must have opened the doors almost immediately after the radio
call. During the 1:04 AM incident, it is more difficult to determine the lapse because the
video does not clearly establish when the radio call was made. However, the eyewitness
testified that the delay was momentary in nature. This evidence is more consistent with the
fact that the Grievant was reclined in his chair with his feet up on the desk which would
require him to take a few seconds to sit up to verify that the officers were at the doors and
then opening the doors. It is not strong evidence that the Grievant was sleeping.

Also weakening the strength of the delay in the doors being opened as evidence that
the Grievant was sleeping is the fact that the pod officer's back is to the VA and VN doors.
When sitting at the pod desk, the only way that the pod officer can see the activity at the VA
and VN doors is through the camera feed. The video surveillance monitor in the pod
contains a grid of 3 inch by 3 inch feeds from the various cameras in the facility. The feed
from the camera that displays activity at the VA and VN doors is in a section of the monitor
that is obscured by a word that is superimposed on the monitor. These facts add credence
to the conclusion that the delays in question are not evidence that the Grievant was sleeping.

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In addition, I note that although the cell checks on third shift are conducted hourly,
for security reasons the timing of cell checks is sporadic. The roaming officers do not
inform
the pod officer of the cell check schedule. The third shift pod officer is therefore unaware
of when the roaming officer will start the cell check. In order to ensure that the VA and VN
doors are opened immediately when the roaming officers approach, the pod officer would
be required to focus solely on the video feed from that camera. One of the County's
witnesses, a sergeant, testified that when it is slow he watches movies while assigned to the
pod. No evidence was presented that the County disapproves of this activity, demonstrating
that the County does not require the pod officer to constantly view the surveillance monitor.
Further, the sergeant testified that doors are opened automatically if the pod officer is
monitoring the cameras, but that the doors are also opened through requests over the radio
and that it is more common for the doors in the pod area to be opened by radio.

The County produced "shift log reports" that reflect activity in the jail on the third
shift for October 2nd, 3rd, and 4th of 2009. The log report indicates, and the Grievant
admits, that no entries were made during the overtime shift in question. The County offers
the documents as evidence that the Grievant was sleeping and that his failure to make entries
on the log shows that he failed to perform required duties. The Grievant testified that he
was
unfamiliar with the events on third shift that needed to be logged. He did make log entries
while working second shift, but did not make the entries while working overtime on third
shift because nothing occurred during the time he was in the pod that he thought was
appropriate for logging. On second shift, he testified that he routinely logged events such
as inmates heading out to work, out to see attorneys, medication distribution, and meals.
Since the inmates sleep for much of the third shift, such information is not logged. The log
reports presented as evidence indicate that cell checks are the predominate entry made from
midnight to 3:00 AM. The County argues that the Grievant was never instructed not to
make
log entries of nightly cell checks and that his failure to do so violated County directives.

While it seems reasonable that logging cell check activity would be a required duty
of the pod officer, based on the record before me I am not able to conclude that the policy
was written or that correctional officers were informed of the requirement. The County did
not produce any written policy or directive regarding the sorts of events that were required
to be logged or the manner in which they should be logged.(3) Therefore, even though the
Grievant admits that he did not make cell check entries on the log during the overtime shift
in question, I am not able to conclude that his failure to do so was a failure to perform a
duty.
The events that he was use to logging on second shift are substantially different than the
more routine nature of the cell checks logged on third shift. Without having a firm policy
in place regarding logging, I find it

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credible that the Grievant would not find it obvious that the cell checks should be
logged,
particularly because the two roaming officers were using a separate electronic monitoring
system while performing the checks.

The County argues that the Grievant was "literally doing nothing while in the pod."
Indeed, the evidence shows that if all is going well there is little for the pod officer to do on
third shift ­ so much so that it is permissible for pod officers to watch movies.
Presumably,
if the eyewitness had gone up to the pod and saw that the delay in the doors being opened
was due to the Grievant watching a movie, there would not have been a report, investigation,
or discipline.

Although I find that the County did not have just cause to suspend the Grievant in
this
matter, it is apparent that the Grievant's reputation for honesty and trustworthiness amongst
his supervisors and many of his co-workers has been impaired by his behavior in other
matters. The County produced substantial evidence of counseling statements, warnings, and
other discipline, including a suspension that was upheld in arbitration, casting doubts on the
Grievant's character and work ethic. Given that context, it is not surprising that the County
asked me to make inferences from the available evidence against the Grievant. However,
other than to cast doubts on the Grievant's credibility, those issues have been resolved and
are not relevant in this matter given my finding that the evidence does not support a finding
that the Grievant engaged in the conduct as alleged.

I conclude that the evidence presented does not establish that the Grievant was asleep
on the job on October 2nd and 3rd, 2009. I also find that the Grievant did not fail to
perform
duties on those dates.

AWARD

The County violated the Contract when it suspended the Grievant. As a remedy, the
County shall remove the discipline from the Grievant's file and make the Grievant whole for
wages and benefits lost during the six-day suspension.

Dated at Madison, Wisconsin, this 7th day of October, 2010.

Matthew Greer,
Arbitrator

dag

7628

1 A tour of the pod facility and
surrounding areas was conducted at the hearing. Although not transcribed by
the court reporter, the Parties each had an opportunity to point out the relevant portions of
the facility. The
description of the pod facility that follows is based on my observations during the tour as
supplemented by
further witness testimony and arguments by the Parties.

2 The record contains contradictory
evidence as to whether the overtime was assigned to Grievant on a
voluntary or involuntary basis. The Union argues that Grievant was forced to work the
overtime while the
County contends that Grievant voluntarily accepted the assignment. I find it unnecessary to
draw a conclusion
on this point. Regardless of how the Grievant came to work the overtime, he would be
equally culpable if he
fell asleep while on the job and failed to perform work duties.

3 The Grievant testified that following
these incidents, the County did issue specific directives regarding events
that are to be included in the log.